Of Freedom of Expression and the Right Not to be Offended

Edited to add: A little over a year after we first had this discussion, Indyeah has written another post on the Freedom of Expression. Not much has changed in this one year – at least not for the better. Both the editor and publisher of The Statesman were arrested in Kolkata for reprinting a certain article, a certain word was beeped out of a song in the film Kaminey, Hussain accepted Qatari citizenzhip in the face of continued exile from his country and an article allegedly written by Taslima caused riots in Karnataka. We still have people rising in defence – rightly so – of Hussain’s Freedom of Expression. These very people seem a little reluctant to give Taslima – or the duo from The Statesman – the benefit of that same right.

The arguments of those condemning Taslima range from the ridiculous to the stupid. For instance, a few people claimed that as a guest in this country, she shouldn’t have written what she did. Let us, for a moment, concede this point, preposterous as the argument may be. But what about the right of an Indian newspaper – both the paper in Karnataka and The Statesman in Kolkata – to publish an article written by a foreign national?

Amidst renewed clamour for even more restrictions on our already constitutionally-curtailed right to the Freedom of Expression, something that has taken considerable beating from all kinds of goons and hooligans, it is absolutely critical that we safeguard and cherish that right. As I concluded in my post a year ago, this right is the only thing slowing our eventual transformation into a banana republic.

Unfortunately, we seem to have made rapid strides in that direction in this one year.

*

Indyeah wrote two passionate posts on why the freedom of expression should be restricted so as to not offend certain people. I left a comment on her blog, but had some further thoughts, so I may as well write on it here. I wrote:

“I agree, freedom should be accompanied by responsibility. However, the responsibility can never be ‘forced’. If I were to give my position in one line it is this: Your freedom of expression has more value than my right not to get offended.

I might disagree with your statements, your books, your drawings, your views. But I cannot deny you the right to have that freedom. I might not allow it on my blog (because that’s my property), but I will never question the freedom you have to put it on yours, or the freedom of other people who show the stuff on their blogs/newspapers/channels.

Freedom of speech and expression can never be compromised. Because once you compromise and give in to one pressure group – however loud or violent their methods, or however hurt they may be – you have opened the doors for everyone else to come in. And that is the end of freedom. Yesterday it was Rushdie, MF Hussain, Taslima Nasrin. Today you have objections to Water, Fire, Deshdrohi, the term “Slumdog”, and the term “Barber”. Tomorrow it might be something equally stupid. Once you give in to one group, and compromise, what reason can you give other groups? That their offended feelings are not good enough? Where do you draw the line?

Every freedom, every liberal principle derives from the freedom of expression. Take it away once, and you are already rolling downhill towards intolerance. India is a prime example.

And for all those who are offended: please don’t watch the films, read/buy/gift the books, view the cartoons, see/buy/gift the paintings, or put up links to those on your blogs. But you can’t stop the person from his right to have that opinion, and the rights of others to publish or display it.

For example, you may choose to not publish this comment. You have every right to do so, as it is your blog. But I have every right to retain my views, and express them freely on my blog, or on any other platform that might allow me to do so. Ditto for Rushdie, MF Hussain, Taslima, Danny Boyle and the girls who went to the pub in Mangalore.

Because the moment the state upholds the right not to be offended over the right to free expression, it is just a matter of time before Mangalore happens. Please remember that.”

Further, my view is that anyone who believes that Rushdie, MF Hussain or Taslima should have exercised “creative restraint” (an oxymoron) is no different from Muthalik. Shocking? Let me explain why.

Implicit in Indyeah’s argument is the judgment that the hounding of Rushdie, the killings of Theo van Gogh and Hitoshi Igarashi, the vandalism, violence and persecution that MF Hussain, Taslima Nasrin, Deepa Mehta and the supporters of Laines’ work have been subjected to were ‘invited’, because their works and expressions hurt people, ‘immature’ people who then resorted to violence as a form of protest. It is also implied that ‘creativerestraint’ would have negated the need for ‘provoked’ violence.

So how is this different from Muthalik? He is offended that Indian women were drinking alcohol and wearing clothes that hurt his sentiments – both of which were legitimate ‘expressions’ of the women concerned. Legitimate expressions of emancipation, modernity, an independent income, a culture they believed in, legitimate expressions of their right to choose. Muthalik and his goons were offended, and they resorted to violence, exactly like the Islamic fanatics in the case of Rushdie and Taslima, and the Hindu fanatics in the case of Hussain, Mehta and Laines. By the same logic, if the women had exercised ‘restraint’, the violence (implicitly ‘invited’ and ‘provoked’) would never have happened.

What gives any of us the right to condemn the latter, without condemning the former? Who am I to decide that Muthalik was wrong in feeling offended – and resorting to violence – but that the people who attacked Hussain et al. were legitimately offended and worthy of support?

I feel her argument condemns Muthalik (and rightly so), but seeks to exonerate (against every civilised principle) the other goons for similar crimes.

Freedom of expression cannot give in to pressure groups. And to counter her argument’s biggest fallacy, it is not just about artists glorifying genitalia (and so what if they do?) – it is about all of us and our choices. Once you compromise, where do you draw the line? There will be more Muthaliks tomorrow who will be offended by the most trivial things, none related to art.

Indyeah mentions, in support of her thesis, that we already have restrictions on our fundamental rights, so why the fuss? Correct. The exceptions to the Right to Freedom are so vaguely worded that the government can see just about anything as violating all of those provisions. But the fact that it’s a fait accompli doesn’t make it right.

She asks, what is the solution in India? No one knows. But I know the solution does not lie in curtailing freedom. It does not lie in capitulating, as the state has, to certain pressure groups – because that only signals to others that the state is willing to compromise, depending on the levels of noise and violence. The battle’s lost right there. Such surrender, and restrictions on freedom, will only embolden newer fanatics. Is that what we want?

Finally, contrary to her assumption, I have no illusions about India ever turning into a civilised, tolerant nation. I would, however, value freedom of expression because it is one of the few things that will slow – not stop, just slow – our inevitable transformation into a banana republic. We’re almost there, anyway. While it is my fond hope that it doesn’t happen in my lifetime, I’m not holding my breath.

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60 Responses to “Of Freedom of Expression and the Right Not to be Offended”

Quirky Indian,:)Sir, let me first just say that thank you so much for such a well presented answer..because the last time I was trying to get my point of view across to someone else,I was on the verge of tearing out my hair…
And to be truthful,I was really hoping that you would do a post on this:)
SO that I would have atleast one sane and coherent voice which would present to me the other side of the debate…
WOuld just like to say that yes,your points are valid….
But you see India going towards being a Banan republic albeit slowly,I hope it won’t….
who knows in a few years I might be saying the same thing:)
In this instance I am sure both of us can agree to disagree…:)
I am just a very confused soul right now..:)
SO I am as clueless I suppose..
have had a lot of freedom talk lately…and a few painkillers to go with it:D
Can I just say that thank you for a well presented and point by point ,coherent rebuttal and leave it at that?
Thank you:)

Ally,
Apologies for bringing this up here (quite inappropriate, if I may say so myself), but when the whole debate on SRK/Sena was going on, most people did not appreciate the fact that SRK’s comment was criticised. I am sure the manner in which it was done was barbaric, but the fact remains that what he said, offended some? I believe the anti-Sena propaganda worked in favour of the pro-SRK one!
And endless debate, I am sure!
Cheers..

@Quirky Indian I agree with you. And I feel strongly about my freedom. It is difficult for one to be free, if some others are being openly disallowed their freedom … so I think, for true harmony and peace, we all should be free.

And “The exceptions to the Right to Freedom are so vaguely worded that the government can see just about anything as violating all of those provisions. But the fact that it’s a fait accompli doesn’t make it right. ” … but I hope we are waking up and we will not let India become a banana republic.

We just needed an awake middle class, and finally it looks like the Indian middle class is waking up, very peacefully and tolerantly.

A very articulate post, I must admit, on a rather convoluted issue. I congratulate you that you actually presented ‘the broader perspective’ – that people like us, the aam aadmi, miss while we discuss the monstrosity of a Muthalik here and a Thackeray there.

But Dear Q.I (if I may take the liberty of addressing you so i.e), don’t you think your arguments (both solid and valid)expose a rather resident paradox of ‘liberty and restraint’. After all when you draw (very just) parallels of feathers being ruffled by both Rushdie and Muthalik alike you are actually pondering on the viability of establishing a pan-human “aesthetics standard”,which I am sure you will agree, is nothing but an idealist’s pipe-dream. So where do we draw the line between the safe and the scurrilous ? Between the sacrosanct and the salacious? Who sets these standards and how? Should/could they be etched on stone and never again fiddled with ? All these melts down to the question – Can there be human consensus ever? To that the answer is an emphatic “NO”.
If one has to cultivate the mutually contesting ideals of ‘Liberty’ and ‘Restraint’ within the same society there needs to be a dominant tribe of ‘thinking individuals’ who can do justice to the inherent dynamic nature of such a society. They should be the ones who are able to dictate terms as to what constitutes ‘the unacceptable abuse of creative freedom’ that might hurt religious sentiments or long standing moral values. As to the possible cropping of questions of “What are values? Why do we need ‘thinking men’ at the helm?” in a nation like ours, I think then we can surely infer that ‘the days of the banana republic’ is here. Till then, let us all enjoy our oranges in peace while others quarrel over its colour.

Agree completely QI. But I’m afraid whether such a thing as complete freedom is indeed possible.

I believe, all freedom is valid as long as you do not cause any problem to another being. Again what constitutes a problem is a tricky thing. For some neighbours, listening to loud music in the night might be a problem, while for others, watching public display of affection might be a problem. Where do you draw the line again?

I guess, it is best if each one of us learns to be tolerant of others and leave the deciding to the law.

Doesn’t all freedom come with responsibility? Do we have a system where all are brought up with identical values and ethics so nobody crosses invisible lines? Tolerance is a much abused word..as is freedom. Are we saying that actions are less open to criticism than reactions? Who draws the lines?

This is a fair analysis on the Indyeah’s post to an extent. While I agree with absolutely on the point that Freedom should be weighted more than the my right to get offended in any case. For an instance an artist has a all the right to freedom of expression and to portray what they imagine.

However in this case artist often cases have a capability to inspire and involve people. So, people expect them to move the society forward, not backward.

So what possibly is meant by the the words @by saying that this is artistic freedom…

It is meant to serve as a doctrine to the artist that their work may betaken literally and hence as a society are expected to be subtle and care in their depiction.

Aren’t Sita, Drapudi, and Sati, to me just ficitious character, someone’s imagination, taken way too seriously in India.

As for the comparative which are drawn between Goons and Artist, all I can say is Goons don’t have a prospective they have agenda, hence….

/*Finally, contrary to her assumption, I have no illusions about India ever turning into a civilised, tolerant nation. */

I understand,many of friends don’t believe in it either.And while I do care and what to be a catalyst in change,if the country is not willing,then I will simple leave…

P.S: I remember you commented in my blog before as well(i.e. before the latest post),go to profile and add this URL to contact info as well as make it the primary blog,your name then will be linked to this place 🙂

Kislay, let me try to answer your question. Unlike the Abrahamic religions Indian religions originally did not have any fear of naked human body or sex. When you read many of our Puranas you will realize that sex and beauty of human body had a prominent place in them.Thats why there are so many nude and semi nude sculptures in our ancient temples. With the advent of modern religions we also got influenced by it and began to consider sex and human body as something immoral and to be hidden. Seeing Hussein’s painting in this background I did not felt offence. This is a subjective reaction. You have every right to feel offended but need not destroy or ban the painting.

I saw the painting and I was angry and revolted. If nudist paintings are considered artistic, why were his daughter and mother clothed?

How far does this artistic license extend to – so far : hindu gods have been printed in bikinis,superimposition of Lord Vishnu’s picture with Jimi Hendrix’s face, using garland made of slippers for gods – how much more?

I am tolerant towards your belief system or non-belief system, why are you unable to extend the same courtesy towards me?
My question is where does creative liberty crossover to blasphemy and who guards the thin line between them?

For a family to prosper all its members need to work together, compromise and be tolerant towards each other. The same goes for a society.

Nothing to add to this good post (it’s my freedom to not add something 🙂 )
Same as you, I have no so much illusions…
See what the Hindu Nationalist Movement is doing…
What if they get the power?
By the way, have you seen the last news concerning this group?
I posted about its new drink…
Maybe it will become a mandatory drink there…
Good luck
😉

@Indyeah: The idea was to examine every point of view. And yes, we can agree to disagree. The world would be very terrifying without voices of dissent and disagreement. I read Nimmy’s posts too.

@Allytude: It’s the bedrock of any civil society!

@LM: Thanks.

@IHM: Hope is important….if there’s no hope, there’s no change.

@whatsinaname: You’re right, there can be no consensus ever; we will get the sacred with the sacrilegious. But in all of this, the freedom of expression must prevail over every accusation of smut or blasphemy. Because the creator of smut, or of a blasphemous piece of art does not force you to see/read her work….no one forced people to read Rushdie or watch Wilder’s film or see Hussain’s paintings. If it offends me, I can choose to ignore it, stay away from it, recommend to my friends and family that they too stay away from it. Why should I contest the individual’s right to her view? If I can exercise the option not to engage with the offending work, and recommend the same to others (restraint!), why should I trample upon the liberty of the other individuals to create, or engage with the ‘offending’ works?

And shades of Plato in your proposed solution!

@Jhayu: Welcome, and thanks!

@Rakesh: Loud music at night intrudes into my physical space…..PDA, on the other hand, offends my moral sensibilities. Big difference. But you’re right, the best solution is to be tolerant of the rights of others to express themselves.

@Solilo: Laws are necessary for any society to exist, but freedom is necessary for any society to progress. Most freedoms that people seek to curtail are those where the offence is “moral” or “religious”. I have no sympathy for those calls for restraint.

@Anita: Welcome. Thanks for the comment. Responsibility can never be coerced. If I cross a line and I offend you, you have the right to protest, to make a counter-argument, to criticise, and to get other people to see your point of view, to get other people to criticise me as well. You have the right not to purchase my book, watch my film, or visit my exhibition. You have the right not to sell my book if you have a bookstore, or show my film if you have a theatre. You do not have the right to kill, assault, firebomb, threaten, or ask me not to express my views. The lines are so subjective, that once we start drawing them, we will never be able to stop.

@Chirag: As I keep saying, you have the right to criticise, and put forward your own point of view. You can protest, peacefully of course. But you can’t ask me not to express my views, whether as an artist or an individual. Because there will always be someone who finds something offensive. Where will you stop? Soon, everything will be banned.

@Kislay: You have a right to be offended. You have a right not to show/display his paintings on your blog, in your house, on your property. But you can’t ask question the right of someone else to show it on her property. Nor can you question Hussain’s right to paint what he does. You can criticise, but you can’t muzzle. Exactly what Charakan is saying.

@Charakan: See above.

@Vishesh: I seriously consider leaving sometimes. Perhaps I will, one day. The pingback is finally here. Thanks for the mention. 🙂

@Genosign: If we started drawing these lines you speak of, we will only be drawing lines, since there will always be something that offends someone. Eg, Slumdog, Barber etc. If I were to choose between freedom and not offending, I would choose freedom, because once I give in, somebody will find something offensive in everything. So what do we do then?

my logic has always been fairly simple. as long as it is within legal realms, no one should have a right to get violent and beat you up, break your shop or burn your books and paintings.

if they wanna BUY it and then burn it to show their protest, let em do that too. but they cannot go and hit the artist or author.

absolutely not done. just the way muthalik had no right to come and hit those girls because he got offended.

i dont understand why we insist on getting ruffled everytime someone draws our gods in derogatory way or calls a barber… a barber! its a bleddy profession, aint it now?

fact is God wont becoem any less God because someone else painted it differently. and nhai will still be nhai in my head even if i call him a hair dresser or stylist or whateva else they wanna call me!

I agree with you on how we are witnessing this race to be secular, which mostly comprises of criticizing Hindus while letting off other communities for their crimes.

Crime is crime, and should be seen independent of religion. Someday maybe we will rise above this sillyness!

I don’t agree on the closing point though…about India almost being a Banana state. I like to think that even though we have many disruptive elements, the people who care feel strongly enough to not let them run over the nation.

I agree with most of the points in the post.
But does freedom of expression also include the freedom of propagating lies as in the Laines case or some of the MF paintings? Then why do we have defamation suits?

I hope you remember you’d directed me to this post from my post–‘Figures of speech’.

I’m a bit confused. You simply wanted me to read this post, or was it in response to my feeling (more than) offended at what our then and current PM had to say?

If it is former, that is simply, wanting my views, then I totally agree with you. That there should be complete freedom of expression. But I’d also add a small clause. Our opinions should be well-reasoned especially, if we’re pinpointing to the choices others/a community makes. But of course, what is ‘reasoned’ and what ‘malicious’ would remain quite subjective.

Abusive words would not constitute ‘opinion’. ‘Dishonest’ with citing of specific relevant instances is an opinion, not ‘dog’ or ‘animal’ or incestual explitives.

But if you referred me to this post to point how our PM had a right to his opinion, then I’d like to point out he was speaking in capacity of head of the state. His opinion was not aired at a family get together. It was supposed to serve as template for future economic and social policies. He may have a right to indulge in nonsensical babble on occasions, but no right to go against the principles of the Constitution by making nonsensical policies while he had been occupying a public office on taxpayers’ money.

Your article is really well written and analyzed. But am hoping for a clarification. 🙂

Ketan, you are right in feeling offended at what the PM said in his capacity as head of state. And what I meant by my comment on your blog where I mentioned political correctness (PC) was just this: that we have become so constrained by PC that we have stopped calling a spade a spade. The PM’s statement was ridiculous, and ought to be condemned. But there is an army of PC advocates who will vigorously defend such statements as long as the (alleged) beneficiaries are any disadvantaged or allegedly disadvantaged group – whether religious, social, economic or otherwise. On being told that such arguments are actually against the principle of fairness, or in a strict sense, equality of access and opportunity, their standard retort is that historical wrongs have to be addressed. OK, so they have to be addressed. But how far back do we go? Who draws the line, and where? 50 years, 100, 600, 1000, 2000 years even? You are opening up a can of worms if you do that, and you’re not really being either principled or fair with your arbitrary and subjective cut-offs….just like with freedom of expression, there can never be a ‘limit’, as such a limit will always be subjective.

Wouldn’t it make more sense in ensuring that the existing schemes to help the disadvantaged are implemented more effectively, reach those they are meant to reach, are not cornered by a ‘new’ elite etc? But of course, all this means actual work. It is so much easier for politicians and the PC brigade to make such statements, and so much easier to continue fooling the people.

Thanks for clarifying. Honestly, I’d not been able to get your point in directing me here, though enjoyed reading the article thoroughly. And now I understand why.

Yes, I’ve noticed PC has assumed ridiculous degrees, unfortunately, among influential and educated people. It’s become fashionable to assume certain positions on governance and economics, that it’s started becoming nothing less than peer pressure to stick with them irrespective of context!

My opinion of PM’s statement is not that it is ridiculous, but that it was outrightly malignant.

What’s shocking in light of such statements is that he’s still regarded as a messiah of secularism, and someone with ‘sound’ economic policies for the country. People forget that economics is not merely money and arithmetics. It’s also about social engineering, education, jobs.

The issue is not only about PC. With repeated abuse of words like ‘secularism’ and ‘minority’, people have forgotten their original meanings!

The PM’s statement is possibly communally most divisive I have ever heard. Why? Because he’s not talking of a temple or a mosque here. But implying, India is a Muslim state, and hence, Muslims will get a preference in dispension of natural as well as financial resources. How more anti-secular and pro-religion could one get?

What does the word ‘minority’ signify anyway? I think the most disadvantaged are the ones with lower incomes. I’ve not checked in long time, but I think one-third of population was below poverty line, and considering that with rising inflation, the per capita income-demarcation must’ve been rendered impractical. So the really financially disadvantaged must constitute about 60%. Is that ‘minority’?

You’re right about ‘how far do we go?’. Also, not to forget, we’ve a much more objective criterion–the economic one. I remember, there was one proposal by a researcher to award points for economic status, caste, urban v/s rural background, education level of parents, etc for various kind of aids in jobs/education. But somehow, such proposals have never been considered.

What I find even more disgusting is the unfair coverage by the media in such issues.

I also find it unfortunate that even a few manipulative bloggers are a part of such systematic fooling of fellow herd-like bloggers, only I can’t think of a motive. Well, I understand that’s a very radical thing to say, but am sure you must’ve noticed it.

Who decides where to draw the line is the biggest question. Anyway these days the followers are easily offended probably more than the God himself.

My question to those getting offended so easily is that “is it worth worshiping a God who gets offended so easily? If yes, then what is the difference between him and humans in general? Both seem to be equally vindictive. I thought God was all loving and forgiving.”

In nearly half a year, I have been able to think of more number of contentious issues. 🙂

I’ll just enlist them (not that I totally go by them, especially being an atheist, but just wanted to point out that legally/ethically issues are or can be made complicated). 😉

1. How do we draw a line between incidental getting hurt by other people and an intent to hurt? Can someone be punished for holding malicious intent of hurting others physically/emotionally, and acting with that intent? IPC section 44 defines injury thus(click) – “…any harm whatever illegally caused to any person, in body, mind, reputation or property.” Does depicting a goddess in nude, which is considered socially/legally unacceptable considering public nudity is punishable today, constitute the artist’s saying – “He he, see the goddess you worship is nude. She is a…”? I understand the ambiguity that words like “illegal” in the above definition are attached with, but same is the case with phrasing like “outraging the modesty of a woman” (used in definition of sexual assault), which could include just cracking a “nonveg” joke in presence of a female colleague (not involving the female)! What determines “outraging” is the subjective feeling of the female concerned. I remember, one of the bloggers feeling outraged on a construction worker showing his penis in public. Was her outrage not merely “subjective”? What about the worker’s “freedom of expression”? The blogger had the liberty of turn her eyes away, forget the incident and walk away!

In something as simple as a sexual intercourse, consent is never expressed through written contracts. If movies/advertisements are to be believed and common sense applied, a lady’s seductive teasing (say, in a pub) may or may not be an invitation to have sex. Whether it is or not, can only be determined with some sort of overture. Here is the problem – can the male be blamed for wrong interpretation, and the consequent overture? Or do we realistically expect males to approach females to have sex only upon receiving a written application on stamp paper from the female? So, if the female “retrospectively” (something we had discussed in your past post) feels that she had not indeed sent any sexual signal, then the male is screwed! He had sexually assaulted her in merely “testing waters”! And of course, issues remain exactly the same even with gender “role-reversal”! Because though a male cannot be legally raped, he can be sexually assaulted. What I am bringing to your notice here, is that in most of the laws, subjectivity of one feeling “hurt” is somehow honored. Honestly, I had developed some sort of respect for Hussain’s simplicity seeing his interview on Movers and Shakers, long back. But you could go through this blog post, and his duplicity is revolting: http://arvind-iyer.blogspot.com/2006/02/mf-hussains-masterpieces.html But I understand, my personal disgust does not count. What I want to point out is, considering these arguments, is it possible to file cases against M.F. Hussain? Yes, I believe so. And that is what has happened! Here, I am not saying how law should be, but just pointing out, how it is.

2. How do we punish freedom of speech that directs other grown up adults to kill someone of other religions by making them afraid of the that religion’s attempts at domination? Just like how religious people have a right to not get offended, they also have right to think for themselves and a right to maintain peace! In light of this fact, one frightening other grown up persons thus should not be held guilty for anything, because he was just expressing himself, and if any violence ensues, it is only those who physically indulge in it should be punished.

3. The above two points, especially, the first one, were almost merely for argument-sake. But the current point is something I am very serious about. In my opinion, there must be some sort of legal liability for deliberately broadcasting factually wrong information or opinions based on wrong/incomplete facts. This would be best illustrated by Ashley Tellis’ case. Because, he was posing as an “expert” on the issue, which can guide other peoples’ choices considering they cannot gather sufficient information on a complex subject on their own. If I were to tomorrow write a book, selectively describing the health benefits of smoking, can I be held responsible for damage occurring to people on the basis of their believing me and taking up smoking, despite their right to not believe me? [I am giving example of smoking only because it is well known; you could substitute smoking with any other practice that people do not have sufficient knowledge about in terms of its effects on health].

For instance I found Green Peace’s propaganda against Bt-brinjal scientifically totally misguiding, and thus also injurious to the interests of the company that had done the research. If I were to be more resourceful I would have definitely thought of filing a case against them. Should this “freedom of expression” which has power to influence others’ choices involving areas of limited public knowledge be with legal liabilities? I believe it should be. But then the next question would be, do legal liabilities that get attached to any kind expression be termed as restriction of that freedom?

Anyway, coming back to Hussain, I’m not sure of how true this is, but I’d read somewhere that on being asked why he had never drawn Prophet Mohammed’s pictures himself, Hussain had said something to effect that Islam is not that tolerant a religion! If this is true, then it means that he was at least aware that what he was doing could hurt Hindus, but that he expected them to exercise “tolerance” (tolerance is to be exercised only against something that’s potentially hurtful). What does this say about his intent to hurt? Fortunately/unfortunately, in law intent is established not through objective information but circumstantial evidence (like past behavior). Another implication of which is that, thus to establish intent in vast majority of cases is upon the discretion of the judge. Hussain’s duplicity and thus the intent to hurt are clearly visible if you take into consideration how he has depicted Hindu deities as against Muslim figures. If it was all about his “subjective” expression of feelings, then it should have been irrespective of how other people (irrespective of their religion) perceive his depictions. Why harbor one “set” of feelings towards Hindu deities, but entirely another “set” of feelings against figures respected in Islam? And am afraid but glad as well, such circumstantial evidence is more often than not employed to establish intent in many cases.

If someone were to point out the engravings on Khajuraho, etc., then it must be remembered that acts done in this century have to be judged on the basis of sensibilities of this century. Example of this would be – sati. It was possibly legal in olden days, but not now! Can we use it as an excuse that our “culture” (just like Khajuraho engravings) had found it legitimate? It is wrong because, in today’s world we recognize the equal right of people to life irrespective of their gender and whether their spouse is alive or dead.

What Mutthalik did was wrong because they had taken law in their own hands! People filing cases against Hussain are doing nothing wrong. Let the courts decide whether Hussain ought to be punished or not. It needs to be understood that with celebrityhood comes added responsibility to be less hurting (because, what one expresses reached a wider audience). Also, what is the meaning of “expression”? Is expression to simply draw a painting for (self-pleasure as claimed by “artists”) and place it in one’s bedroom, or does it necessarily have to culminate in “exhibition”? There is a thin line that separates mere expression from communication, and that line is the effort one takes in making their expression reach others. If I write a blog entry and later delete it, I am still expressing myself. But if I write the entry and send you the link, then I am communicating. What does an artist do when he draws a painting and also sends out invitations where his paintings would be displayed?

Personally, I feel, if it were all merely about artistic expression, then Hussain could have just drawn the same nude ladies, and labeled them ‘Rambha’ or ‘Urvashi’ instead of “Saraswati” and “Durga”, and hardly any of this ruckus would have got created, and he would still have had the “orgasmic release” of creative expression clearly evading the law! 😉 See, how cleverly Rushdie did not name anyone as ******* in his story! 😉

Taslima Nasreen, in contrast, was basing her assertions on something more universal than a religion, i.e., human rights and ethics. I do not see Hindus getting largely offended when pointed out that dowry, female feticide and sati are wrong! So, these double standards set for different religions are to be set right, first. Nasreen chose to wrote the things she did in hope that it would do good to Muslim women, and the society as a whole and also the accepted premise females have same rights as males. So, using the prevalent legal standards, she was doing more “good” than “harm” (offending Muslims). What was the intent of Hussain in drawing the paintings and also displaying them in a exhibitions What “good” did doing so do as compared to the “harm” (offending Hindus)?

I feel religions are given way too much legitimacy over other affairs by the government and the judiciary despite touting India as a secular nation, but the tone was set right with establishment of religions and castes as bases for discriminatory “affirmative action” and other sops like Hajj subsidy. So, now the judiciary and government have not right to say, “hey, religion is a private matter; don’t take it seriously”. They themselves brought it into public domain by making all non-Muslims contribute to Hajj subsidy, and taking over the functioning of Temple trusts, or whatever other interference they have shown in matters of religion.

But despite my making these arguments, I know I am stating something wrong and contrary to what I want the “ideal” world (as I see it) to be. But I do not think people can be prevented from making complaints in the courts merely on legal/ethical grounds. What we can explain is that we need to be pragmatic, and not react on irrelevant things as far as our survival and personal happiness are concerned. But these things are easier for me to say, because I anyway find religions overrated. I do not know about others, but to me, a person with an intent to hurt others going scotfree is somehow unacceptable. It for me, would rather constitute abuse of freedom of speech, rather than its use.

And lastly, I am not sad at losing a “great” artist. All he was doing was making money, which he would do more avidly so, now that he is in Qatar! 😉 His crocodile tears do not mean much to me. A person who is so “free” in his thinking would any way not be attached to frivolous things as invisible lines (international boundaries) drawn on land.

Is there something wrong with WordPress that makes these blogs more vulnerable? Just asking, I don’t know if you have good knowledge of internet, etc. Because, yours is the fourth such case that I know, and all of them have been on WordPress despite the fact that I follow a lot more Blogger blogs.

I have only one question (not for you, Quirky, ofcourse, just an open question) – will liberal, creative, noble artist Hussain DARE to paint Allah or the Prophet, or even Christ or Mother Mary in the nude? That’s all I would like to know. If he will do it, then he is a true artist. Someone, who paints out of feeling and emotion, and not after weighing the pros and cons.
If he will not do it, then he is obviously a very shrewd and cunning man, knowing where to channel his creativity!

I guess, very few people would dispute that Hussain is being hypocritical in employing double standards (and it can almost objectively be proved). And we recognize hypocrisy as a detestable thing in our day-to-day interactions. But is hypocrisy legally punishable? Unfortunately, since we are talking law here, things have to be more concrete than mere emotional appeals. Law is not based purely upon the nature of acts, but as much on their consequences and the intent. Law and ethics had to be developed precisely because people interact with each other, and these interactions evoke different responses in different people. But beyond a limit, we do stereotype people’s behavior for simplicity and universal applicability of law. Just because a few people might want to commit suicide does not imply others do not have the desire to live, or they should not have unalienable right to live. So, for instance, “right to live” fundamentally is a form of stereotyping based on how people usually behave and desire or dislike. That people desire life and fear deaths are generalizations, but well accepted ones. That people can feel hurt when the deities they worship are portrayed nude and labeled thus is also a generalization, but can such generalization be employed to make such an act punishable? And again, I will try to present a case as to why it would not be unjustified if Hussain ends up punished.

I used to think (court’s) judges’ function was to work on the basis of some kind of algorithm, but fortunately that is not the case. They’re supposed to take into consideration that small human element. I know it makes things subjective, leaving a margin for transgressions of fairness, but it is much better than robotic application of laws. Law will never be perfect as long as people harbor the intention to be dishonest and indulge in things they themselves know to be unethical. But still, the manner in which our law currently (theoretically) functions still comes close to being perfectly ethical. Think of it, issues related to cyber crime can be brought under the gamut of laws that were created long back only by slight modifications.

If we are to remove establishment of intent in one’s actions out of the picture there is no way a surgeon operating upon a stab injury victim can be absolved if the patient dies because the fact that his surgery was antecedent to the patient’s death can be used to argue that surgeon caused the death. In this sense, a surgeon trying to save the patient would be no different from a person trying to kill the patient by stabbing.

Remember, surgeries are traumatic events in the sense continuity of the skin is breached, blood is lost, there is damage to liver, kidneys, etc. because of anesthesia used, loss of consciousness if general anesthesia is used. The only things that keep so many potentially harmful things from being considered wrong are:

1. Surgeon’s intent (in interest of the patient)

2. Consent of the patient.

3. Potential benefit incurred by the patient (meaning what could be gained has to be perceived to be greater than what the patient suffers: the ‘risk-benefit ratio’) despite the risk of harm.

Now, but it could be argued that the body of the patient belongs to the patient and he/she may or may not consent to things, but to who does a religious deity belong?

It is here the things get contentious. The constitution has recognized the right to practice religions, which are in turn based on nothing but one flimsy thing called faith. If faith (which is beyond the realm of reason, and hence arbitrary) is used as a yardstick to grant various favors like caste and religion based reservations, then the subjective disgust felt, which is “beyond reason” also becomes admissible. Moreover, this makes the one worshiping the said deity/religious figure in a way its owner. Have you noticed how subconsciously we apply the very same logic in saying “Muslims’ Babri Mosque” and “Hindus’ Ram Temple”? Otherwise, religious practitioners are not a “financial company” to own any monument, religious or not!

Consider another situation:

‘Roadside Romeo’ whistles at a girl passing by. What different has he done as compared to Hussain who had invited others to view what he had painted?

How does one establish that our Romeo was whistling at the girl? He was just whistling and the girl happened to pass by. What about Romeo’s right to creative expression? Just because the girl “feels” it was obscene does not make it obscene! But the fact is there are established conventions that are well known and people are expected to respect them. Otherwise, why should not standing up when National Anthem is being played considered punishable? What if a person does not feel respect for the nation? What if a person does not think that respect can be shown to the nation by standing during while the anthem is played? Or most imaginatively, what if the person feels that contrary to what others believe (the argument that can be used by Hussain and artists), standing while the national anthem plays only amounts to disrespect of the nation (for “whatever” reason, because by relegating certain human actions beyond the realm of reason and justification, viz., “arts”, we surrender our right to question anything about them, and in fact, then anything could be included under the broad term of “art”)?

But of course, one may argue that if one applies these standards then no one would be able to air a dissenting opinion.

But again here is where the intent part comes into picture. A “mad” person may be restrained. It amounts to restricting his freedom. However, we still do it in the larger interest of others around. Is the dissenting opinion benefiting the society in any way? Can art benefit the society at large in the same way, opinions or commentaries do? I will remind here, the reason I am bringing in society so frequently is because considering the case involved, we are talking of art in “public” and not in “private” domain.

Whether this scenario would be taken to be murder and the severity of punishment would depend upon many factors like:
1. Whether A knew that being hit with a knife can lead to death (the reasoning by which drunken driving is punishable)
2. Whether A had intended that B or C die (motive behind the act).
3. Whether B or C actually die.
4. Whether whatever B or C suffer from were directly caused by the throwing of the knife (say, B dies because of malaria despite dodging the knife).

Remember, it is not a case that to punish, all the four are to be proved. Just that the severity of punishment would depend on how many points are proved and with what strength of conviction.

Hussain (hypothetical argument): “it (painting nude images that I label and admit in public to be Hindu Goddesses) is my way of expressing my creativity; B came to the gallery, viewed my pictures and did not feel (dodged) hurt; why did C not dodge the hurt?”

Here, again it could be argued that because the harm is through physical contact, causation and intent are easier to prove. So, is it a case that we do not entertain hurts where physical contact are not involved? What about a mother-in-law who “abets” suicide of her daughter-in-law by merely using some words (nagging) that the daughter in law could have overlooked? What about “practicing untouchability”? Is it not an oxymoron? How could one “practice” an act of omission? What about the fundamental right of any person to not touch another person or to perceive another person as dirty (religious “reason”; religion is beyond reason, just like art)?

And last in my series of arguments, there is one very useful concept that can be used in at least “amateur ethics”, which may or may not be admissible in the court of law, but is otherwise very useful – “do not do to others, what you would not have done to yourself”. This is the maxim that will keep me from filing a case against Hussain (provided I am interested and have the resources). 🙂 But then, look at the maxim (if one agrees to it) in a slightly broader sense – did Hussain do to “Others'” religion’s figures what he would not have done (or do) to his own religion? Apparently, yes.

So, taking into consideration the following criteria (because these are knowingly/unknowingly applied in dealing with all criminal/civil cases), Hussain’s series (not just one, which rules out the possibility of making a mistake “unknowingly”) of paintings could be judged:

1. Intent.
2. Knowledge of the consequence of his act.
3. Harm:benefit ratio.
4. Causation – as in his act causing the hurt or something else.
5. Magnitude of hurt (degree of hurt to a single individual; plus, the number of individuals thus hurt).

But despite so many arguments I have put forth, there would be different judges weighing the same issues differently, and judgments that come out would vary from complete acquittal to some punishment. The pertinent law is the section 295 A (click) of IPC:

“Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.– Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 6[ citizens of India], 7[ by words, either spoken or written, or by signs or by visible representations or otherwise] insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 8[ three years], or with fine, or with both.]”

I am not saying I am in complete agreement of the law, but the fact is, it exists. And if I am to go against an established law, I will take into consideration the risk-benefit ratio – what is gained in return of potentially insulting other people’s religious sentiments? Is it improving their lives in any way – say, what Taslima Nasreen did, or Baba Amte did, or the way people who expose fraud sadhus do? Did it protect people from superstitions or gave them aesthetic pleasure?

If Hussain was interested in merely expression, as I stated in the preceding comment, then he could have done so by merely hanging the painting on his bedroom wall. The fact that he had to exhibit his paintings to the public implies that his purpose (whatever it was) depended upon the response elicited by his paintings. So, is only “positive” response that he obtained to be considered the purpose of his painting, and not the feeling of “hurt”?

If people are suggesting that existing laws need to be made more flexible, then I would agree. Maybe, the best thing that could be done is that the functioning of judiciary could be smoothened to a degree that having to defend oneself in the court would not remain a disincentive. This is the best way fairness could be maintained.

Fairness lies not in blanket acknowledgment of right to “act” nor of blanket right to “get affected” by the act, but is somewhere in between. This “in between” thing will vary depending upon the sensibilities of the judge sitting over a case (imagine the frequency with which higher courts overturn the judgments of a lower court), and it cannot be helped. But the moment we make any of the rights absolute, it would only make way for its abuse (as I illustrated through the above examples).

But I also understand Quirky Indian’s strongest concern – that of acknowledgment of mob rule – just because a “certain proportion” of people feel something does it become legitimate? Of course, it does not, but as I pointed out the lack of a charitable intent and possibility of existence of malicious intent in doing something avoidable that did no particular good to anyone (possibly, excepting himself) do not lend themselves in favor of Hussain.

We all have disagreements with the laws we live amidst. Honestly, most of my above arguments were for argument-sake, because personally I wouldn’t be bothered enough. But if we disagree with a law, first an attempt to modify it must be made. But just because a law comes in way of what we want to do, we should not break it (for instance, someone might think that the amount of tax they have to pay is an infringement on their right to income considering what the government is giving in return).

As I had said earlier, may be these laws can be made more flexible, but the unfortunate part is, it is difficult to allow any freedom to an absolute degree.

When I had commented here for the first time, if you’ll notice the kind of “expression” that I had in mind was somehow purpose-driven, that’s why I had made a mention of “well-reasoned” opinions, meaning I was only thinking of expressions which have tangible meanings and purpose. Hussain-kind of “expression” had totally escaped me. 😉

My flip-flop, if it could be called so, is embarrassing, but am also glad, I realized once again, I have a lot more of world to see, and my theories about life and people are not complete, yet. 🙂

@Liju: Absolutely! Where do we draw the line, and how is that decided, and who decides that – these are the questions, and I don’t think there is any answer, short of banning everything.

@Pal: No, he will not. And neither will his defenders – not the defenders of the freedom of expression, mind you – but his defenders. By the way, it seems that The Hindu too published an apology after some Muslim groups objected to something they had printed a few years ago. Is this the same N Ram who recently wrote that outraged letter about freedom of expression when Hussain accepted Qatari citizenship? Do you know if he wrote a similarly outraged letter, defending the freedom of expression, then? If he did, he is a true champion of the freedom of expression. If not, he’s a hypocrite.

First, IMHO, not quite the right analogies. A flasher does not give you the choice not to see. Cracking an obscene joke in front of a female colleague does not give her the option of not listening. A hooligan whistling at a girl leaves her with no choice but to hear him, so these are not really sound arguments. But a painting exhibited in a gallery, or a book in a bookstore leaves you with choice – you needn’t engage with the work if you find it offensive. This also, I believe, addresses your “surgeon vs. killer” argument, based on intent – since the patient’s consent is needed. In other words, there is a choice. Consent is the key word here. The difference is subtle, but very important.

Most of these alleged “crimes’ where religious or moral sensibilities have been ‘hurt’ are, in the final analysis, so subjective so as to be almost victimless crimes. It is very important to differentiate between physical crimes and acts of expression – whether artistic, spoken or written. I don’t think throwing a knife at someone can be called “freedom of expression”.

Inflammatory speech is trickier to handle, but I would still err in favour of freedom of expression. If a law is broken, or if someone is assaulted because of that, and causality is established in court, then, as the cliché goes, let the law take its course.

We also need to differentiate between expressing as an opinion, and presenting something based on one’s capacity as an ‘expert’. That’s the reason why we have advertising standards, and why, for example, a doctor cannot be seen to be commercially endorsing a particular drug – even if, in his opinion, it is the best thing that ever could happen to humankind.

I might not agree with Hussain’s artistic views, but surely I can’t ask him to adhere to my view and not express his? The same argument applies to the works of Rushdie and Taslima as well.

I agree, people can’t be prevented from seeking legal redress. That’s at least better than resorting to violence and vandalism. But even the law needs to stand more firmly behind the freedom of expression. You cannot hold someone guilty of having an opinion, or a point of view, however repugnant that may be. In our country, of course, the law is flawed in this regard. Our freedom of expression is constitutionally-curtailed, and the exceptions, as I have mentioned, are so vaguely worded, that anything can be seen to have violated the law.

Finally, to answer your question about whether the law should be absolute or ‘flexible’ – the problem in a chaotically diverse country like ours is that once you move from the absolute, you can only end up at the other extreme, where you will always have to accommodate and take into account someone’s hurt feelings. So you end up with no freedom. How much flexibility is enough? To quote from my post: “Once you compromise, where do you draw the line? There will be more Muthaliks tomorrow who will be offended by the most trivial things, none related to art…..Freedom of speech and expression can never be compromised. Because once you compromise and give in to one pressure group – however loud or violent their methods, or however hurt they may be – you have opened the doors for everyone else to come in. And that is the end of freedom. Yesterday it was Rushdie, MF Hussain, Taslima Nasrin. Today you have objections to Water, Fire, Deshdrohi, the term “Slumdog”, and the term “Barber”. Tomorrow it might be something equally stupid. Once you give in to one group, and compromise, what reason can you give other groups? That their offended feelings are not good enough? Where do you draw the line?”

At the outset I would like to clarify that I am neither for blanket punishment of all (perceived) excesses in using freedom of expression, nor for blanket liability-free freedom of the same.

Yes, you are quite correct that the analogies I had provided were not exact, and that is because through each of them, I wanted to highlight separate issues involved in law and ethics individually (to the extent I understand them).

I believe for every act a holistic approach to judge it must be pursued based on the following criteria (something which the judiciary anyway seems to do):

1. Intent (motive behind the act).

2. Knowledge of the potential harm/hurt of the act.

3. Strenght of causation between the act and the alleged ensuing harm/hurt.

4. Degree of harm caused.

5. “Truth” behind the expression if it can be objectively determined.

6. Risk-benefit ratio of the act. Meaning, if others are getting potentially hurt/harmed, is there anything to be gained?

If the above criteria are considered, I feel most of the works will pass through the screen of law. Please note, nowhere am I endorsing violence, threat or coercion by means outside of established law. It will not be a case that everything would get banned. No! I am pretty sure many cases where people try to have others’ expression censored are dismissed, it’s just that such cases are not highlighted by the media. Example: “In 1993 Syed Shahabuddin tried unsuccessfully to ban another book” (click; a note in Wikipedia) If I try to say that contact lenses ads make me feel self-conscious and such ads should be banned, then using above criteria itself my petition would be dismissed, and possibly I might be fined for “wasting court’s time”.

Owing to the manner in which you have considered a few things allowed and others disallowed, many inconsistencies in the standards we employ arise. I’ll enlist a few issues immediately apparent to me:

1. The usage “to not engage” is ambiguous. By that did you mean: to not encounter a piece of expression or to not get emotionally affected? If you mean it is the former, then, the to exercise the choice you have talked of is not practicable, because no one can determine beforehand if viewing/reading/encountering something will prove hurtful or not. In fact, this was the paradox pointed out in criticism of those who were opposing Rushdie. Reading Satanic verses had been declared blasphemous and possessing it, illegal (I think in India, too), then how were people protesting against it without reading it? And for some of the acts of expression such kind of deliberate overlooking might not even be possible. Think of messages through public address system or large billboards or someone surfing TV channels. Here, I will just add that emergency operations upon unconscious patients (who cannot consent) without any attendants are allowed and rather imperative. So, what reigns supreme here is the intent behind the act. Administering euthanasia to a “consenting” patient is not allowed. [Euthanasia is something extremely contentious; I am not opposed to it being made legal]. So, again it is the intent that gains precedence.

But if by “not engaging” you had meant to not get emotionally affected by way of overlooking/forgetting, then by using same appeal, the lady in office should not get affected by lewd jokes, nor should the lady who happens to hear whistle of the hooligan.

2. “Victim’s” subjectivity is still being employed in punshing the “criminals” in case of obscene jokes and whistiling. By punishing them are we not curtailing the involved people’s freedom of expression? What if the lady in second case feels offended by someone politely requesting her to tell the time? What criteria will we employ to absolve the “hooligan” of guilt? We will again have to factor in one of the six criteria I had mentioned above.

3. In case of colleague’s cracking obscene joke and punishing of whistling, their respective freedoms of expression are being curtailed. Why special protection to artists/writers, but not to normal office-going people or someone celebrating his happiness [ 😉 ] on a roadside by whistling?

We will have to decide what takes precedence: people’s right to expression (including cracking lewd jokes and whistling) or people’s right to not get offended/avoid that hurt (by not participating in office gossip sessions and by not walking on the road where a hooligan is going to whistle, or taking the same road and simply forgetting it).

4. “It is very important to differentiate between physical crimes and acts of expression” Can I refine your statement to mean – differentiation between acts (crimes) with physical v/s nonphysical consequences? If you so allow, the ladies in the office and the one whistled-at did not suffer any physical harm.

5. What is expression? You had pointed out: “acts of expression – whether artistic, spoken or written”. Is dancing expression? What about playing instrumental music, graffitti expression, showing the middle finger? Will we ever be able to define what is “expression” or “art”? The moment we allow freedom of expression in absolute terms, we as a state and society are totally surrendering our right to question anything. Because we by doing so, simply move from harmony-in-society-driven laws to individual-freedom-driven laws. If using absolute freedom of expression, someone claims that “to throw knives is my birth right, and I express myself throwing knives of different shapes and sizes depending on my mood”, how can one counter such an argument? Your idea of art could be different from the one throwing the knife! In fact, many who were offended by Hussain’s do not consider his lewd paintings as art at all!

“I am not throwing my knives specifically “at” people, but people are just happening to pass across the trajectories of knives thrown by me!” I know this is a most insane plea, but insane in light of legal and ethical standards we employ currently, wherein we judge an act by its consequences as well as intent. And even if someone is able to prove beyond doubt that throwing knives is not an act of expression, we still have other unmentioned rights, like right to act, for example right to throw a cricket ball on a cricket ground! Why accord different status to knives? Why can’t they be thrown?

6. “…as the cliché goes, let the law take its course” (in case of inflammatory speeches). I suppose, beginning this discussion was with an understanding that current laws are unfair or inappropriate. What precisely makes an inflammatory speech wrong, but not some other hurtful acts of targetted expression (say, MF Hussain’s paintings)? I guess, you would agree that the way the IPC section 295 A is worded, there was high chance that Hussain would have got convicted. And the fact that he had made such paintings on multiple occassions might have made his “crimes” more grave. I think this was the strongest reason he fled India.

If you will see carefully, very few instances wherein those exercising their freedom of speech in perilous fashion have actually got punished by the judiciary! Most of them were cases of public vigilantism and knee jerk reactions by the government (without consultation/guidance from the judiciary). So, it is not a case that specific laws have been invoked to curb people’s freedom of expression as much as populism and public intolerance. That’s why I still feel, the laws in their current form are not entirely inappropriate. So, what we need is an attitudinal shift and not modifications in IPC sections. I think most of the cases you had cited, the artists/creative people had given in to popular demand rather than being effected through judicial process.

If it might interest you, I just read the following court order [no, it is not interesting to read]:

But in all honesty after I went through the above order, the manner in which the petitioner (Baragur Ramchandrappa) was convicted by the court, and the precedents set are both frightening. So, as I end this comment, I must say my faith in laws as they currently stand are interpreted with regard to treating people’s religious sensibilities with absolute kid-golves, is quite shaken. 🙂

In particular:

“Courts
have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the Court. The Supreme Court has held that, to find out whether an offence is made out under Section 295-A or not, the susceptibiiities of persons of different religious persuasions or creeds is relevant and the Court has to give due regard to such feelings in consideration of the case.”

So, I would now consider your concern very genuine, and in fact it no longer remains simply yours, but is shared by me, too. 😦 Just that I would still like some checks/liabilities to be there in the range of freedom of expression permitted, but I would that range to be wider than what currently it is, in particular, allowing for fact-, rationality- or human rights-based criticism of religions/religious practices and personalities.

@Ketan: I appreciate your efforts in constructing these arguments, but they seem to be a rehash of what you have already said, and what I have already, in the post and in my comments, replied to. But let’s go over it one last time.

To begin with, may I correct the perception you have formed about something I have written, something you have addressed in Point 6 of the second set of numbers? Please revisit what I wrote. I specifically mentioned that I would err in favour of freedom of expression. And, you seem to have forgotten – and left out – the most important part of my sentence: “..if someone is assaulted, and causality established in court,….let the law take its own course.”

You are right when you say most of the people who have protested against any of these works have not seen, read or encountered these works. They have, therefore, ‘not engaged’ with the works. They’re agitated because people (community leaders, politicians, radical elements) have told them that the works are offensive. Many of these people have half-baked, ill-formed and second-hand opinions, and protest only because they have been suckered into it. (That’s my opinion, and I might be wrong.)

Your analogies are still wrong. However, let me clarify once again. There are acts of expression, and there are acts of violence – even accidental violence – and assault. Throwing a knife, or rape, are clearly in the latter category, and if you try to equate them – even rhetorically – as acts that possibly could seek cover behind the freedom of expression, then don’t you think that there really is no point in proceeding with this discussion?

Within the broader category of ‘acts of expression’, you could have whistling, and cracking an obscene and/or racist joke in front of someone who does not appreciate such expression. There are two things to note here: one, the act of coercion – simply because the listener was not allowed a choice. She had the whistle/joke thrust upon her, and it may have offended her. But even here, she has the choice of making her displeasure known and to hopefully prevent subsequent instances. Which brings us to the second point – is it a crime, that can attract litigation or arrest? In India, it could come under the ambit of ‘eve-teasing’ and /or a sexual-harassment law. Overkill, in my opinion, but it could be justified by the fact that the listener was not given a choice.

On the other hand, you have paintings in a gallery, or a book in a book-store. This is not a hoarding, or a mural on a wall, which everyone can see, or can’t avoid seeing. Yes, someone had to read the book or see the painting – or, as is more likely, to probably read an excerpt, or a review or a report – to judge if it was offensive. Now, offensive is again a very subjective term. What might be offensive to us might not be offensive to Americans. What might be offensive to Americans might not be offensive to continental Europeans. What might be offensive to you might not be offensive to me. So, as long as I do not force you to accept my beliefs and value-systems (by forcing you to look at my work, or read my book), why are you forcing me to relinquish mine, and in effect, accept yours?

And that is the crux of the debate. Are we asking the state to judge what is ‘offensive’? On what basis? On the basis of ‘hurt sentiments’? And once you agree that yes, the right not to be offended is more important than the freedom of expression, where do you stop? We have already seen “Billo Barber” changed to “Billo”. We have already seen a word beeped out of a song in Kaminey because it offended a certain community. We have seen Karan Johar apologise for using Bombay. We have author Murzban Shroff in trouble because he used a term that Maharashtrians don’t like. But, as he has explained, he has created a negative, prejudiced character that uses such language, and another character in the story points out that such usage is, well, not the right thing to do. But he still has cases filed against him. And what if a religious fanatic chooses to be offended by the teaching of the theory of evolution? Do we ban text-books mentioning the scientific view about the origins of the universe and life? Tomorrow, someone, somewhere, may choose to be offended by the most innocuous thing. What are you – or the state – going to do about his sentiments?

Finally, intent. Good luck to you in establishing mala fide intentions behind any work of art. For example, you see the article Taslima allegedly wrote as agreeing with your value-system; so you attribute good intentions to it. But look around you. Millions of people disagree with you and feel it was done with intention to hurt. Which value-system should the court believe? Some things should never even get to the litigation stage, and freedom of expression is one of them.

All that I need to say has been said in my post and my replies. As far as I can tell, all relevant issues raised in your comments have been addressed – some even in the original post itself. I am glad to note that you have started to share my concerns on this issue. A new proponent of the freedom of expression is always welcome. 🙂 However, if you do have a fresh argument or perspective to offer, I would be delighted to hear from you again. Otherwise, allow me to end this by saying that I really enjoyed this discussion. Thank you.

I could not put it clearly enough in my previous comment, but I find the section 295-A inappropriate because it talks of taking care of sensibilities solely on religious grounds, which does not fit well with the Constitution’s stated goal of making India a secular state. I mean I do not understand why religion only as the basis of taking offense should be given such importance? That way someone speaking against dowry or sati or for women liberation could be booked if something even remotely in support of the above ill practices could be found in one of the traditional Hindu/Vedic literature. 😦

And well, I had misread “causality” as “casualty”! Hence I had interpreted it entirely differently. And apologies for that. Anyway, don’t you think to prove inflammatory speech’s causal relation with violence must be impossible? Would depend purely upon discretion of the judges, I guess. Nobody directly dies because of spoken words, after all (except Dronacharya, maybe). 😉

And somehow I still don’t find the idea of getting booked for sexual harassment simply for cracking a joke or whistling quite compatible with complete freedom of expression. It still gives too much leeway to the subjectivity of one (especially, females) feeling hurt. As I pointed out, someone might likewise feel hurt simply on being asked time! How would we differentiate between the publicly accepted and deviant forms of behavior? Some ladies do not mind lewd jokes. Some ladies might take being whistled at as a form of appreciation http://www.puneetsandhu.in/2009/09/delhi-dilemma-solved.html?showComment=1253040656714#c3338032021505115580 ! Just to make it doubly sure, I have nothing against those taking whistling as a form of appreciation, but only pointing out the subjectivity involved of one “hurt”.

“For example, you see the article Taslima allegedly wrote as agreeing with your value-system”

Firstly, I have myself not read her works, so I cannot be confident in forming judgments. But from what I had read, she had spoken for basic rights of Muslim women, and some atrocities in Bangladesh (not in the article but previous works). If this is correct, then at least there is something unambiguously comprehendible in her work. So yes, you could say that basic human rights is a part of my value-system, but does the Constitution respect basic human rights as value system? If you agree that it does, then even in face of the hurt she was to cause, her intention was to offset a much greater evil.

But in case of Hussain’s paintings, despite the comparable amount of hurt caused as by Taslima’s works, what was to be gained by publicizing the work?

As to establishing the intent in case of Hussain, his intent was to draw certain figures in the nude, which he labeled with names shared by certain Hindu goddesses. And he publicly proclaimed his idea was to draw the same Hindu Goddesses as he had labeled. This is prima facie, unless and until he claims that those drawings were outcomes of some kind of seizures. 😉 As to whether he had the knowledge this could hurt the sentiments of Hindus, is what the courts are there to establish. But yes, if we are to let liability-free freedom of expression prevail, then Hussain is guiltless.

And when I talked of speaking as an expert, probably you misunderstood me. I was not talking merely of conflict of interest. I was talking of damage that occurs because of relying upon seemingly factual information to which common people do not have access. For example, in monsoon season there are ads that warn people against breeding of mosquitoes. But if someone says something akin to “latest research shows that mosquitoes are not involved in spread of any disease, but rather they can reduce global warming”, should such a use of freedom of speech be punishable, and if yes, then under what provisions? Of course, I do not know if you are connected with law, but shouldn’t we be concerned about such abuse of speech? Is “lying” permitted under freedom of speech? This is not a rhetorical question at all. Am wondering, because publicly lying can lead to lot of damage, and causality would also be difficult to prove. And as to the intent, it can never be proved with complete confidence.

And one more thing I could not adequately convey through all my comments is my disapproval for knee jerk reactions when someone does/says something offensive. I am totally against vigilantism. I was only talking from perspective of whether with regard to any form of expression, legal liabilities should be there or not.

“A new proponent of the freedom of expression is always welcome.”

Can I take offense at usage of “new” proponent of freedom of speech? 😉 I have always believed in freedom of not just speech but many other things, probably the degrees to which you and I would want them allowed or to be liability-free are different. 🙂

Thanks for the informative links. I had knowledge about Khushboo’s case, but did not know that even the SC judges had objected to her statement. In that case, their outlook is truly worrisome to me. The other cases are also quite frivolous. But I think depending upon the outlook of the judges, some cases might get thrown out and even the litigant could be fined.

Being short of time, it is alright if you do not reply. I just wanted to clarify that I would not want to be perceived as someone who had been opposed to freedom of speech! 😉 It would be case of unfortunate communication gap if that is the impression my arguments were leading to. I anyway had shared your concerns, it’s just that as happens most of the times in debates it’s only the differences in opinions that get magnified because we naturally do not discuss what we agree upon. 🙂 The only place where I am curious of your opinion is on liability that should/should not be attached to propagation of factually flawed information. This could occur in two circumstances – relying upon which leads to actual harm (like wastage of resources or damage to health) or those cases where wrong info is propagated without significant consequences. Example for latter could be cooking up facts about historical figures/events (wherein say, reliable information is available which is opposed to the newly purported facts). I am not asking this from perspective of someone’s sentiments getting hurt, but do you feel deliberately and publicly ‘lying’ should be punishable?

Thanks again a lot for your patient replies despite (I suppose) a very busy work schedule!

Hey, this just struck me. Not that it’s a particularly brilliant idea, but I think just like in movies there is a ratings system (e.g., “A”), for any work of expression, issuing a disclaimer should be made legally possible such that certain portions of the work could hurt/offend the audience/viewer/spectator/reader. And once this disclaimer is issued, anything, including expletives, downright abuse of individuals/communities must be allowed. I am serious about this idea. Because once such a disclaimer is issued, one taking the offense becomes automatically responsible for taking the “risk” surrounding the. This will serve two purposes – first, it will take away any liability from the creator of the work, second, people would be forced to develop the requisite tolerance, because if people start complaining on frivolous grounds, then even Tom and Jerry episodes will be broadcast with such disclaimers. 😉

That would be in stark contrast to defensive sounding – “…any resemblance whatsoever is purely incidental”. But guess, that kind of broadmindedness will take time to come. And more important, current crop of judges will have to change their outlook a lot for that to happen. I don’t know if things will improve with a generational change in those judges sitting over cases.

[…] Lastly, this post was written with a lot of ideas I arrived at after having exhaustive discussion/debate with The Quirky Indian – Of Freedom of Expression and the Right Not to be Offended (click). […]

[…] ”Freedom continued.” A friend had a viewpoint that I respected then as I do now. Freedom of expression and the right not to be offended. Today, I stand with that friend too. His words resonate with […]